Monday, July 25, 2011

A host of high-powered attorneys from across Texas have been kept for Warren Jeffs' counsel, whether they want to be or not.

The head of the polygamy-sanctioning Fundamentalist Church of Jesus Christ of Latter Day Saints has attorneys from Houston, Dallas, Fort Worth and McKinney helping him for his Monday trial, in which he is charged with two counts of sexual assault of a child.

Deric Walpole is the lead counsel for Jeffs. He is a lawyer out of McKinney, part of the firm Luce, Norhouse and Walpole. He was once voted "Trial Lawyer of the Year" by the Collin County Criminal Defense Lawyers Association, according to his law office. He has been listed as a Texas rising star for the past four years by "Super Lawyers" magazine.

He began representing Jeffs about three business days before the trial was scheduled to begin, submitting motions and paperwork at the last minute.

Jeff Kearney of the firm Kearney Wynn in Fort Worth was preparing to be lead counsel before Walpole. Reagan Wynn of the same firm was serving as co-counsel. Kearney has been listed in the Best Lawyers in America and in a who's who lawyer publication and has practiced law for 29 years, according to his law firm.

Kearney had been representing Jeffs for more than five months before Jeffs tried to fire him, and Kearney filed to be removed from the case on July 7. Judge Barbara Walther, of the 51st District, who is presiding over the Jeffs trial, denied that motion, although Kearney has been instructed by Jeffs not to represent him.

Walpole once asked for more time to prepare for trial and said he could be ready in 90 days with Kearney's help, but Jeffs told his new attorney not to get Kearney's help. Kearney said he could explain his falling out with Jeffs to Walther in private, but Jeffs said through Walpole that he didn't want Kearney saying anything about it.

Walther nevertheless has not allowed Kearney to be removed as counsel.

Robert and Gary Udashen, brothers who are attorneys with the Dallas firm Sorrels, Udashen and Anton, have won accolades in a wide variety of publications and have had a case be the subject of TV movies. They said they had been retained only to present a motion to suppress evidence.

Evidence for the Jeffs trial and the criminal trials of other FLDS members came from an April 2008 raid on the FLDS Yearning for Zion Ranch, which began with what is widely believed to have been a hoax phone call from a woman claiming abuse at the ranch. The state has argued it had to act on the information at the time.

Other FLDS members have argued against the legitimacy of the search warrants and have asked to have the evidence suppressed, and that aspect of one of the previous cases of an FLDS member has gone to oral arguments before the Texas Third Court of Appeals, which has yet to rule on the case. Robert Udashen presented those oral arguments for the FLDS member.

Emily Detoto, a Houston-based attorney who is also listed as a rising star by "Super Lawyers," said she was retained only to try to have Walther removed as judge from the case. She got a hearing before a visiting judge, but her motion was denied.

She too has tried to bow out for the remainder of the trial, but Walther has ordered that she remain as co-counsel along with other attorneys.

Carla Perron, another Houston attorney, had been assisting Detoto and Walther also named her as co-counsel.

Eric Nichols is the lead attorney for the state. He works in private practice with the Beck, Redden and Secrest law firm now that he has left the Texas attorney general's office, through which he prosecuted the other seven FLDS members who have undergone trials for criminal offenses. He has been retained to continue representing the state in criminal FLDS member cases as a special prosecutor. He too has been listed as a "Super Lawyer" and under a roster in "The Best Lawyers in America" publication. Angela Goodwin, another attorney with the Texas Attorney General, has assisted him in the past and is assisting him now.

Walther will hear the case. She signed the warrants and orders for the evidence gathering and search on the YFZ Ranch, and she has heard every case stemming from the indictments, all seven prosecutions of FLDS members, as well as motions to suppress evidence.

A fraternity brother and personal attorney of South Carolina Treasurer Curtis Loftis stands to make $3 million in fees working on a lawsuit for Loftis' department, a deal the state's top lawyer approved despite the close ties.

Attorney General Alan Wilson said Loftis didn't initially disclose details of his longtime relationship with lawyer Mike Montgomery. When Wilson learned of them later, he signed off on Montgomery's involvement because he believed it wouldn't affect taxpayers.

Loftis said he told Wilson about his connection to Montgomery from the start and "did everything to say, you know, 'This is my guy,'" when he sought clearance from Wilson.

"We don't hire enemies to do stuff for us," Loftis said.

Regardless, Wilson sees no harm in the arrangement and said such connections are common in South Carolina's relatively small legal community.

Montgomery's engagement in a contingency fee case, in which lawyers get paid a percentage of whatever their client wins, does not violate any laws. But when The Associated Press described details of the arrangement, legal experts and government watchdogs said it raises questions about how the state distributes legal work and the role relationships may play in deciding who gets to spin the wheel on contingency fee contracts. Other states have moved to systems requiring more vetting.

"It smacks of political patronage," said Gerald Finkel, a Charleston School of Law professor and past president of the South Carolina Trial Lawyers Association, now called the South Carolina Association for Justice.

Contingency arrangements and hiring outside lawyers have been top issues for the American Tort Reform Association for years. The group has pressed states' attorneys general to pledge to be more open in how they award that lucrative work. The arrangements are rare in South Carolina — just six contingency fee contract lawsuits have won approval since 2008 — and they leave unanswered questions about how taxpayers can be sure the best qualified lawyers are handling their interests.

Taxpayers should expect the state to field its best legal minds because the defendants will bring their best, said Darren McKinney, the association's spokesman. "You can rest assured they'll have their hall of famers in the lineup. It would be suicidal not to," McKinney said.

More than a year ago, former state Treasurer Converse Chellis tapped Columbia lawyer Mitch Willoughby to look at a lawsuit against Bank of New York Mellon Corp. The state had a contract for short-term conservative investments for state and retirement cash. The state alleges the bank lost money by investing in long-term, mortgage-backed securities, a claim that bank spokesman Tim Steele said has no merit.

In January, as Loftis prepared to succeed Chellis as treasurer, Willoughby briefed Loftis and Montgomery on the case. Montgomery, a Loftis friend since 1978 when they were Pi Kappa Alpha brothers at the University of South Carolina, has handled Loftis' legal work for more than 20 years and continues to do so. At the time of the Bank of New York Mellon conversation, he was working as Loftis' unpaid transition lawyer.

"I would say I've pretty much been involved in every piece of legal work he's had since 1986 from his business and personal standpoint," Montgomery said.

Willoughby, who had no previous connections with Loftis, came out of the briefings thinking that Montgomery should be added to the lawsuit's legal team, though he insisted no one pressured him to make that move. He had worked on different sides of cases with Montgomery, known him for about 20 years and respected his work.

"Mr. Montgomery's talent and skill — that was unquestioned in my mind because I had personal knowledge of that," Willoughby said. "But I also knew he had a relationship with Mr. Loftis that provided a foundation as a trusted adviser that had been earned over many, many years."

Montgomery had another tie to Loftis: political donor. Campaign finance reports show Montgomery gave at least $1,052 to Loftis during his bid for treasurer last year.

The Bank of New York Mellon case involves other connections between lawyers as well. Willoughby, for instance, had known Chellis for years before being hired. Chellis, a certified public accountant before his election as treasurer, had testified on cases Willoughby had argued.

Even Wilson, who approved the hiring of Montgomery, had been special counsel in Willoughby's firm for two years before last year's election and had known him for years through the South Carolina Army National Guard.

Finkel, the professor, said it's unusual to add another lawyer as far into a case as Montgomery was, particularly against a major opponent like one of the nation's largest banks. "Getting a lawyer or switching horses midstream generally is not done that far into the litigation," Finkel said. "And it just doesn't pass the smell test if there are personal relationships that have colored the employer relationship."

Loftis said the state could be repaid $200 million from the bad investments. If the state wins back the full amount, the lawyers would be paid $14 million under a contingency contract that pays them 23 percent of the first $5 million and decreasing percentages for damages exceeding that. Willoughby's agreement with Montgomery gives him 77.5 percent of the fee, or $10.9 million before expenses; Montgomery would get 22.5 percent, or $3.1 million.

The fee split recognizes Willoughby's firm's "significant time and effort to date and the successful development of the case to the critical point of filing the complaint," the lawyers' Jan. 18 fee agreement says.

Willoughby regarded the fee deal as a private agreement but allowed a reporter to review it at Loftis' urging.

Loftis said he didn't know how much Montgomery will be paid and shrugged off the notion his friend could see a big payday. "That's not my business," Loftis said. "I don't have the slightest bit of interest in it."

Loftis said he kept the arrangement above board by posting Montgomery's contract on the state treasurer's official website along with other documents in the case.

In South Carolina, lawyers who do state work agree to fees, have to be in good standing, and typically are hired at the request of the agency needing the legal work without an interview or resume, Wilson said. "Absent some disqualifier — some ethical charge or something going on outside of the norm — we generally defer to that agency head," he said.

The arrangement with Montgomery was approved the same day the request was made, and there was no reason to delay, said Mark Plowden, a Wilson spokesman. "After such a request from a constitutional officer, the better question would be — Is there a reason NOT to allow the hire? We attempt to turn around requests as quickly as we possibly can," Plowden said in an email.

Wilson said no one should be shocked by relationships in a state with a small legal community.

"I get criticized if I know a lawyer too well. I get criticized if I don't know a lawyer at all," Wilson said. For taxpayers, he argues, the point is whether their interests are being served. In the Bank of New York Mellon case, he notes, taxpayers are not paying more just because Montgomery was added.

"I don't see how anybody gets harmed," Wilson said.

Other states hire outside lawyers using different approaches that may limit the role personal relationships may have on who handles cases.

In neighboring Georgia, lawyers can request to be considered for appointment for specific types of legal work. "Their requests will be considered based on a number of factors, including their expertise and willingness to do the work for the rate or fixed fee established by the AG," said Lauren Kane, a spokeswoman for Georgia Attorney General Sam Olens.

In Washington state, the State Investment Board keeps a pool of qualified lawyers and rotates the work among them, said Washington attorney general spokesman Dan Sytman.

John Crangle, South Carolina's director for the government watchdog group Common Cause, said Montgomery's deal looks like the good old boy system at work. "That's the way things have been done in South Carolina since Adam and Eve," Crangle said.

Thursday, July 21, 2011

Cedric Benson's attorneys claim in a statement released to media outlets Wednesday that the man whom the running back allegedly assaulted last weekend is threatening to agree to media interviews if they do not agree to a "settlement" meeting.

Attorneys David Cornwell and Sam Bassett, however, said "there is nothing to settle" and that Benson would be "unburdened by the threat of extortion."

The attorney for Claven Charles, the alleged victim of the assault, said he was "disheartended and puzzled" by the statement from Cornwell and Bassett.

In his response to KXAN-TV in Austin, attorney Thomas Crowley said he and his client have received numerous calls from the media but have declined all interview requests.

Crowley says Benson's attorneys tried to set up a settlement meeting, then canceled it, and instead released their statement to the media.

Crowley said Charles was hospitalized after the incident and "has incurred thousands of dollars of medical bills, and he has further medical procedures pending."

"This is especially disconcerting because neither I nor my client have made any request for money from Mr. Benson at this time, nor have we threatened to file suit. The purpose of the meeting, in my mind, was to understand Mr. Benson's intentions regarding this serious matter," Crowley said in the statement.

Travis County sheriff's spokesman Roger Wade said Sunday that Benson was arrested in downtown Austin, Texas, on a misdemeanor count of assault with bodily injury with family violence.

Benson's attorneys also said in the statement that "Cedric did not act without provocation."

Benson will be a free agent when the NFL lockout ends after leading the Cincinnati Bengals in rushing each of the past three seasons. He hoped to stay with the Bengals, and worked out with players in Cincinnati during the lockout.

In their statement, Benson's attorneys said, "Cedric regrets the events of this weekend and he is committed to addressing any concerns that NFL teams may have."

Last summer, Benson was arrested in Austin. Police charged him with misdemeanor assault for allegedly punching a bar employee in the face. Benson has denied the charge, and the case is pending.

NFL commissioner Roger Goodell met with Benson about the arrest last year and decided not to punish him. Benson could face a suspension for his latest arrest, once the players and league reach a collective bargaining agreement, clouding his future in the NFL.

Attorney General Pam Bondi and two recently fired employees are embroiled in a public fight over whether her office fired the two lawyers for being too aggressive against mortgage lenders involved in foreclosure fraud cases or whether the lawyers engaged in unprofessional conduct.

A few months ago, Theresa Edwards and June Clarkson were making national headlines for exposing mortgage lenders and law firms for unsavory practices related to the foreclosure mess plaguing the state and country. Then Bondi's office abruptly fired them at the end of May - and the two lawyers cried foul.

Bondi refused to explain the firing for a week after the story broke. But Thursday afternoon, after a week of media coverage featuring the two lawyers, she changed her mind.

A lengthy statement released by Bondi's chief of staff Carlos Muniz said that the two women were let go from the agency's Fort Lauderdale office because of problems related to "proper identification and analysis of legal issues … judgment in discussing matters related to pending investigations with third parties … and … professionalism to opposing counsel."

They were given the right to resign rather than be fired, Muniz' statement said, adding that "their performance was unacceptable, but they had not engaged in deliberate misconduct."

But the women's evaluations, turned over by the Attorney General's Office, have been consistently high. Edwards' aggressive demeanor toward opposing counsel were noted in a review last September, but she was also called a "go-to" person. Clarkson also received positive reviews.

Muniz highlighted a document that indicated the division director had several "areas of concern" about their job performance. But that document, provided by the attorney general's office, does not specifically mention Edwards or Clarkson. It only mentions "members of the South Florida staff."

Richard Lawson, the economic crimes division director appointed by Bondi after she took office in January, said that he had no particular reason for not naming the women in the document. He said that he identified several concerns with the two employees on his trips to South Florida last spring and met with them on three different occasions to discuss how he felt they could improve.

"They were very specific and meaningful shortcomings that we just found unacceptable," he said, saying they were listed in Muniz' memo.

Bondi spokeswoman Jenn Meale said that there was no paperwork documenting the meetings, which were just conversations between Lawson and the two employees.

Edwards, in an e-mail, said she disputed the Attorney General's Office version of events and that she and Clarkson had not seen Lawson's evaluation of them. Their yearly evaluations were conducted by their direct supervisor.

She said that she and Clarkson were pleased that the Attorney General's Office was dedicating more attorneys to foreclosure fraud, but said she also found it curious that they would do so without letting the two lawyers provide any transition notes on their cases.

"I will be interested to see the results of all the hours and energy that is now being used on these investigations," she wrote.

Edwards and Clarkson attracted widespread media attention for the exposure of foreclosure mills, turning up fraudulent signatures and fake names on documents being used to oust people from their homes. Documents didn't have the correct dates. Large financial institutions couldn't always produce the proper paperwork.

But as the women were racking up cases, Bondi also came under fire for being soft on mortgage lenders.

Religious leaders came to Tallahassee in May protesting Bondi's decision to oppose a key provision in a 50-state negotiation with the nation's five largest mortgage servicers. Bondi and six other attorneys general disagreed on one point - cutting the mortgage principal for qualified homeowners.

In mid-May, Joe Jacquot, an attorney in Bondi's office, was named senior vice president of Lender Processing Services, a firm under investigation by the office.

According to the Attorney General's Office, Lender Processing Services is still under investigation as well as nine other firms that have been accused of improper mortgage practices. The office also noted Jacquot was a holdover from the administration of former Attorney General Bill McCollum.

Wednesday, July 20, 2011

An attorney cited the words of a nemesis of former Detroit Mayor Kwame Kilpatrick - Wayne County Prosecutor Kym Worthy - in arguing today it was lawful for Kilpatrick to use his campaign fund to pay nearly $1 million to his criminal defense attorneys.

At issue at a 90-minute hearing in Lansing was whether the conduct that prompted the legal fees was personal or related to Kilpatrick performing his duties as mayor.

Christopher Thomas, head of Michigan's Bureau of Elections, said Kilpatrick has admitted the lies that resulted in his conviction for obstruction of justice were told "to protect (his) wife and family," and avoid "all that embarrassment." Therefore, it was not proper for Kilpatrick to charge the legal fees to his mayoral campaign fund and he should be fined close to $1 million, Thomas argued.

"There can be no serious argument that covering up a romantic relationship is somehow incidental to the business of carrying out the office of the mayor of Detroit," he said.

But Kilpatrick attorney James C. Thomas — no relation to the elections official - pointed to what Worthy said in 2008 when she brought charges against Kilpatrick resulting from the test message scandal.

"This was not an investigation focused on lying about sex," he quoted Worthy as saying. "The public trust was violated," and "this case was about as far from being a private matter as one can get."

After today's hearing, Administrative Law Judge Colleen Tulloch-Brown requested briefs from the Bureau of Elections and Kilpatrick's attorneys, which can be filed up to Aug. 18. She will then give a decision.

Kilpatrick admitted to lying when he testified in 2004 and 2007 in a whistleblower lawsuit brought by former Detroit police officers who said they were expected to facilitate and cover up Kilpatrick's extramarital affairs. Later release of text messages sent between Kilpatrick and his former chief of staff, Christine Beatty, showed both of them lied when they denied under oath they had a sexual relationship.

Today's hearing stemmed from a complaint filed by former Wayne State University law professor Maurice Kelman who claims Kilpatrick improperly used his campaign fund to pay lawyers who defended him during the text message scandal.

The $976,000 fine sought by the Secretary of State says the $976,000 fine is equal to the amount Kilpatrick drew from the fund to pay lawyers.

Kilpatrick is scheduled to be released on parole Aug. 2 from a Jackson prison where he is serving time for probation violations related to the text message scandal. He is also awaiting trial in federal court on corruption charges.

A 2009 opinion from former Michigan Attorney General Mike Cox says an officeholder can use campaign funds to pay legal fees resulting from certain criminal charges, but it depends on the underlying conduct.

James Thomas said the perjury-related charges Kilpatrick faced in Wayne County "related directly to his actions in office," and the use of campaign funds was justified, Thomas said.

Last year, former Secretary of State Terri Lynn Land offered to settle the campaign finance complaint if Kilpatrick paid a $1,000 fine and reimbursed the state $10,000. The offer was never acted upon.

Michigan Attorney General Bill Schuette filed a petition in Wayne Circuit Court demanding that Kilpatrick use proceeds from his upcoming book to repay taxpayers for the cost of his incarceration - at least $12,750.

In U.S. District Court, a lawsuit filed by Macomb County Public Works Commissioner Anthony V. Marrocco on behalf of the Macomb Interceptor Drain Drainage District names Kilpatrick, close friend and indicted contractor Bobby Ferguson, indicted ex-water boss Victor Mercado, indicted Kilpatrick aide Derrick Miller and other politically connected contractors. It seeks to recover sewer costs that were allegedly inflated due to corrupt payoffs.

Earlier, a Wayne County judge ordered that Kilpatrick can't profit from his autobiography, titled "Surrendered: The Rise, Fall and Revelation of Kwame Kilpatrick." It's set for release Aug. 1.

Kilpatrick still owes the city of Detroit more than $800,000 of the $1 million he promised to pay as part of his punishment for the text message scandal.

News Corp's independent directors have hired a top New York white-collar defense attorney and a former U.S. attorney general as Rupert Murdoch's media conglomerate seeks to contain fast-developing scandals rooted in its UK newspaper business

Mary Jo White and former Attorney General Michael Mukasey have been brought aboard to advise independent director Viet Dinh, New York law firm Debevoise & Plimpton, where both attorneys practice, said in a statement on Tuesday.

Dinh, who is also an attorney, is supervising News Corp's management and standards committee on behalf the independent directors. The committee is cooperating with authorities investigating the scandals.

Separately, the Wall Street Journal reported that the company has hired Mark Mendelsohn, a partner in the Washington office of Paul, Weiss, Rifkind, Wharton & Garrison, who has extensive experience with the Foreign Corrupt Practices Act.

The Journal, citing sources familiar with the matter, said Mendelsohn's mandate could not immediately be learned but noted his hiring comes amid questions over whether alleged bribes that News Corp's defunct News of the World newspaper paid to British police could constitute a violation of the act.

The Journal is owned by News Corp.

Shareholder value

The appointments of White and Mukasey indicate that the independent directors want to ensure that any course of action for the company is designed to preserve shareholder value and the company's overall well-being, apart from any interests of executives, a partner at a large law firm told Reuters.

The partner, whose practice focuses on corporate and securities litigation, requested anonymity to speak candidly about the situation.

With the arrest of Rebekah Brooks, former chief executive of News Corp's UK subsidiary News International, and the possibility of further charges or allegations against other executives, the independent directors want to make sure that the company's interests are protected, he said.

"When a company is under fire and where senior management may be implicated, independent directors want to remove even the suggestion of a conflict of interest," he said.

News Corp said on Monday it was bolstering its management and standards committee and appointing UK barrister Lord Anthony Grabiner to serve as committee chairman.

White is one of the most prominent internal investigation attorneys in the United States and is a former U.S. Attorney for the Southern District of New York, where she served for nine years ending in 2002.

She is chairman of Debevoise's 225-attorney litigation department. Her practice also focuses on white-collar defense and securities and corporate governance.

Mukasey was U.S. Attorney General from November 2007 to January 2009. He succeeded Alberto Gonzales, who resigned in the face of accusations by Congress that he had politicized the Attorney General's office.

Mukasey previously served as a judge in the Southern District of New York. His practice focuses on internal investigations, independent board reviews and corporate governance. He joined Debevoise in 2009.

White conducted an internal investigation of engineering giant Siemens AG in 2007 in one of the biggest corporate bribery scandals in history. UBS AG also hired White amid securities fraud allegations.

As U.S. Attorney, she brought racketeering charges against mobster John Gotti and prosecuted terrorists in the 1993 World Trade Center bombing.

"Mary Jo is the gold standard," said Jonathan Polkes, a securities litigation partner at Weil, Gotshal & Manges. White served as the acting U.S. Attorney in the Eastern District of New York, while Polkes worked in the office in the 1990s. "She will issue a report with unquestionable integrity."

Monday, July 18, 2011

Briskman & Binion P.C., which is a business and injury law firm in Mobile, AL, recently launched their new website in addition to a new logo.

The new site, which can be found at http://www.briskman-binion.com, provides visitors with information about the firm, its lawyers, its specialties and information about past cases.

Briskman & Binion P.C., which was founded in 1988, has sought to maintain a clear community focus in Mobile, Alabama. The firm’s experienced business lawyers and Mobile injury attorneys dedicate their time to civic boards, professional development and legal institutions in Mobile and throughout the state of Alabama.

Briskman & Binion attorneys are members of all courts in Alabama, as well as federal courts including the 5th and 11th Circuit Courts of Appeals and the U.S. Supreme Court. Also, because of their extensive involvement professionally and publicly, Briskman & Binion has earned a pre-eminent reputation among its peers.

Through numerous high-profile, precedent-setting cases in the areas of insurance law, personal injury, corporate law and construction litigation, the lawyers of Briskman & Binion have established a legacy of accomplishment and integrity. The firm’s reputation for handling legal matters competently, timely and professionally precedes us in the courtroom and in the legal community; Briskman & Binion’s highest compliment is many referrals from other lawyers. While they’re proud of the recognition their peers and other law firms in Mobile have for them, Briskman & Binion lawyers are solely motivated in achieving the best results for their clients.

Attorneys for the Tucson shooting rampage suspect want all clinical assessments psychiatrists performed on him videotaped while he's at a federal prison medical facility in Missouri.

Jared Lee Loughner's lawyers filed the request Friday in U.S. District Court in Tucson.

In another development, the 9th U.S. Circuit Court of Appeals scheduled an Aug. 30 hearing in San Francisco on an appeal by Loughner's attorneys over forced medication.

Loughner's attorneys said the videos have "likely evidentiary value" and they want to safeguard his constitutional rights. They also want to see copies of all videos immediately.

Loughner has been at the Springfield, Mo., facility since May 27 after a federal judge concluded he was mentally unfit to help in his legal defense.

The 22-year-old has pleaded not guilty to 49 charges in the Jan. 8 rampage that killed six and wounded 13, including U.S. Rep. Gabrielle Giffords.

Mental health experts have determined Loughner suffers from schizophrenia and will try to make him psychologically fit to stand trial. He will spend up to four months at the Missouri facility.

Friday's filing by lead Loughner attorney Judy Clarke said the "videotaping is for the protection of the defendant subject to commitment and restoration efforts by the government" and the defense team wanted copies of all videos.

If Loughner is later determined to be competent enough for trial, the court proceedings will resume. If he isn't deemed competent at the end of his treatment, Loughner's stay at the facility can be extended.

Loughner's lawyers haven't said whether they intend to present an insanity defense, but they have noted in court filings that his mental condition will likely be a central issue at trial.

The ruling kept in place an earlier order that temporarily stopped the involuntary medication of Loughner. The order will remain in effect until the court rules on an appeal by Loughner's attorneys over the larger issue of forced medication.

The appeals court ruled that Loughner's interest in not suffering the risk of side effects from powerful drugs is stronger than the government's interest in protecting Loughner and those around him in prison. But it noted that authorities can take steps to maintain the safety of prison officials, other inmates or Loughner, including forcibly giving him tranquilizers.

Loughner was forcibly medicated between June 21 and July 1 at the Springfield facility after prison officials determined his outbursts there posed a danger to others. He was given twice daily doses of Risperidone, a drug used for people with schizophrenia, bipolar disorder and severe behavior problems.

Friday, July 15, 2011

When a mistrial was declared Thursday in the perjury trial of former Yankee Roger Clemens, Matthew Galluzzo, a young criminal defense attorney not involved in the case, began tweeting.

"Mistrial in the Roger Clemens case? Those federal prosecutors look like clumsy amateurs," he posted, linking to a news story on the development.

For Mr. Galluzzo, 35 years old, the tweet isn't just a passing thought. It's part of a concerted effort to raise his profile. He is among an emerging group of young lawyers who are using social media to market themselves in the hopes of joining an elite class of attorneys whose names are nearly as recognizable as the high-profile defendants they represent.

In New York, where the criminal justice system often ensnares professional athletes, celebrities, mobsters and Wall Street titans, a lawyer's media savvy sometimes can count almost as much as courtroom performance. The old tools of branding - snazzy ties, confident bluster and gimmicky ads - are being replaced by a prominent web presence.

Mr. Galluzzo and his partner opened their practice, Galluzzo & Johnson, in 2009. Their first brush with quasi-fame came when their client, Angel Alvarez, was shot more than 20 times by police in Harlem in 2010. He was charged with gun possession, but the case was later dropped when a special grand jury declined to indict him.

While the partners already maintained a blog commenting on and analyzing prominent cases, Mr. Alvarez's case made them aware of Twitter's reach. They joined Twitter to post updates on the case.

"We were getting so many phone calls about the case from the media, we decided to tweet about it and have people follow us for updates," Mr. Galluzzo said.

Today, his Twitter feed is dominated by announcements about media appearances he's making on French television and radio, and links to blog posts he's written in French analyzing the sexual assault charges against former International Monetary Fund chief Dominique Strauss-Kahn. Mr. Strauss-Kahn is represented by Benjamin Brafman, who ranks among a group of top criminal defense lawyers that includes Murray Richman, Ira Sorkin, Gerald Shargel, Joseph Tacopina and others.

Mr. Galluzzo's law partner, Zachary Johnson, 34, said the web isn't just a space for pointed commentary. "It's a very cost-effective way of marketing," he said. "Facebook and Twitter are becoming so prevalent amongst consumers of all services, we would be doing ourselves a disservice as a law firm to not use these channels to reach people."

The blog, he said, is a "perfect forum" to showcase their knowledge of the law. He and Mr. Galluzzo often post conversational items explaining charges levied against defendants in high-profile cases.

"The blog is intended to be informative," he said. "You can add a level of intelligence to the discourse."

It's also intended to draw clients and attention from the media, others said.

"I'm writing about a topic that people are looking into or investigating," said Jeremy Saland, 36, a criminal defense attorney who runs a blog and Twitter feed for his practice, Crotty Saland. "This is no different, at the end of the day, than the Yellow Pages back when the Yellow Pages were relevant. It's just another vehicle."

Advertising and marketing have long been contentious issues in the legal world. State bar associations, until the early 1970s, grappled with the ethics of legal advertising. Even handing out business cards was seen as a dubious practice that came close to breaching the prohibition against soliciting clients.

The bar associations eventually came around, allowing ads with clear disclaimers. Even then, a large number of attorneys did not advertise, looking upon it "as fundamentally demeaning of what we're trying to do," said Scott Greenfield, a Manhattan defense attorney who has a popular blog and more than 1,500 followers on Twitter.

Mr. Greenfield said his web presence has nothing to do with marketing or advertising. Indeed, his posts explore the more existential elements of the law, or simply serve as "an opportunity to say my piece."

"To be honest, I don't think it's done a damn thing for me," he said of his blog's ability to attract desirable clients.

Mr. Greenfield is a frequent lecturer and occasional media commentator. He disapproves of using the Internet for self-promotion. Still, he doesn't begrudge young lawyers.

"It's not just about creating an Internet persona," he said. "They have to have the ability to handle the cases that they seek."

Nicole Black, an attorney and co-author of "Social Media for Lawyers: The Next Frontier," said bar associations have recently studied web marketing and social media and concluded that they are subject to the same ethical rules as traditional advertising.

A good rule of thumb for attorneys is that "if you can't do it off-line, you can't do it online," Ms. Black said.

Mr. Richman, a well-known Bronx attorney, said that when he was starting out, he got clients by going "where the criminals are."

"I went to bars, clubs and pool rooms on a Friday night," said Mr. Richman, 73. "By the end of the night I had five, 10 or 12 new cases because they got to know me."

Mr. Richman - who conceded he's "old-fashioned" - said his distaste for lawyers using social media stems from his refusal to advertise.

He also regards tweeting and commenting online as an attempt to "hustle the cases" away from the existing counsel.

"You're being judged on being cute or having a cute expression and all the nonsense that goes on with Twitter," he said.

Mr. Saland said that while he has generated clients from readers, it is ultimately references from other attorneys and former clients that keep him busy.

Said Mr. Johnson: "You gain a reputation based on what you do inside the courtroom. At some point you have to win big cases. No amount of blogging or tweeting is going to put you on that level. But can you get a big case using social media? Absolutely."

Until then, Mr. Galluzzo, whose Twitter avatar is a picture of himself being interviewed by the local cable news station NY1, will continue to promote his media appearances to raise his profile.

"The very best clients are referrals from other lawyers. That's the old-school way of doing it, and that is still the best way to do business," he said. "But I've gotten some business just by virtue of media interviews."

A recent tweet Mr. Galluzzo posted seemed to speak to his aspirations: "You know you've made it as a criminal Defense lawyer when you get hired to defend a rapper," he wrote on July 7. "I've got [a] trial to do this fall in Brooklyn...."

Major League Baseball veteran Roger Clemens is likely to face another trial on charges of lying to Congress unless his attorneys can show prosecutors deliberately provoked yesterday’s mistrial, lawyers say.

The government's failure to steer clear of information barred to the jury by the judge's order probably won't be enough to keep the seven-time Cy Young award winner from being tried again, said Stanford University criminal law professor Robert Weisberg.

Even so, U.S. District Judge Reggie Walton raised the possibility that the government may not be able to bring the former New York Yankees pitcher before a new jury.

After declaring a mistrial yesterday in federal court in Washington, Walton said he'd have to assess whether the government, "having precipitated this mistrial," can retry Clemens or whether "re-prosecution is barred by double jeopardy."

Under the U.S. Constitution, the government can rarely try a criminal defendant more than once for the same crime.

In the case of a mistrial, inadvertent mistakes by the prosecution aren't enough to force charges to be dropped, said Robert Mintz, a former federal prosecutor and a partner in McCarter & English LLP in Newark, New Jersey.

'Intentional and Egregious'

"The entire case will hinge in whether the judge viewed the conduct as intentional and egregious," he said, citing language in a 1982 U.S. Supreme Court ruling on the issue.

"We'll hear the government's explanation as to how this could have occurred," Mintz said, adding, "It's hard to imagine this was done intentionally."

Walton said that prosecutors violated a court order yesterday when they showed the jury of 10 women and two men a video clip of the 2008 congressional hearing where the wife of government witness Andy Pettitte was discussed. Walton ruled earlier that no references to Laura Pettitte, or an affidavit she gave Congress, could be made during the government's case.

Clemens, 48, is accused of lying to Congress about his use of steroids and human growth hormone. Prosecutors said that Andy Pettitte, a former teammate, would testify about his close relationship with Clemens and how Clemens told him in 1999 or 2000 that he had used HGH. Clemens told Congress that Pettitte misheard the conversation.

'Goes to Prison'

"Mr. Pettitte's testimony is critical as to whether this man goes to prison," Walton said yesterday, noting that the video improperly bolstered Pettitte's credibility with the jury. "I don't see how to unring the bell."

Bill Miller, the spokesman for the U.S. attorney's office in Washington, said in a statement that Walton's order barring discussion of the case precluded comment.

Clemens was charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury in connection with a congressional probe of ballplayers' use of performance-enhancing drugs. If convicted on all charges, he faces as long as 30 years in prison and a $1.5 million fine.

Statements to House

The charges stem from Clemens's statements to the House Committee on Oversight and Government Reform in February 2008, in an interview with committee staff and later at a public hearing. Clemens, under oath, denied ever using anabolic steroids or HGH, according to the indictment.

During the public hearing on Feb. 13, the government's main witness in the trial, Clemens's former trainer Brian McNamee, said he injected Clemens with both drugs while his client pitched for the Toronto Blue Jays and the New York Yankees.

Walton stopped Durham during his opening statement as the prosecutor told jurors that Clemens's former Yankee teammates Pettitte, Chuck Knoblauch and Mike Stanton would be called to testify how they used HGH. Walton ordered jurors to disregard the reference to the other players, which violated a pre-trial order.

Walton also ruled July 6 that the government was barred from using or referring to any part of an affidavit by Laura Pettitte, who swore her husband had told her about a conversation with Clemens in which Clemens acknowledged using the drugs.

Rebuttal Information

Laura Pettitte could only be brought up in the trial to rebut information from the defense, Walton ruled.

The trial was stopped as Assistant U.S. Attorney Steven Durham took testimony from the government's third witness, Phil Barnett, the House staffer who deposed Clemens.

Durham played a clip of Representative Elijah Cummings questioning Clemens during the Feb. 13, 2008 hearing. As the video played, a transcript appeared on the screen.

Cummings mentioned Laura Pettitte's affidavit.

Walton stopped the trial and ordered the lawyers to the bench. While the video paused, Cummings's words stayed on the screen. After a few minutes, Walton sent the jury out of the courtroom.

"I clearly ruled that Mr. Pettitte's wife and what Mr. Pettitte said to his wife could not come in," Walton said. "This clearly runs afoul of my pretrial rulings."

Walton said he was "perplexed" that the government's exhibits hadn't been altered after his ruling.

'No Bad Faith'

Durham told Walton "there is no bad faith on the part of the government here."

Michael Attanasio, a lawyer for Clemens, said in court he had been "pestering" the government for new exhibits since the July 6 ruling and that Durham "cited resource constrictions at the U.S. Attorney's Office for why he didn't have them."

Walton granted Hardin's request for a mistrial after a half hour break in which, he said, he consulted his colleagues.

"If this man got convicted, from my perspective, knowing how I sentence, he goes to jail," Walton said. "And I'm not going to, under the circumstances, when this has happened, put this man's liberty in jeopardy."

Walton gave Hardin until July 29 to file a request that Clemens not be retried and scheduled a Sept. 2 hearing.

Mintz said the judge will "consider very carefully" whether to retry the case given the resources put into it, regardless of how angry Walton got at the government yesterday.

Government's Explanation

His decision will depend on the government's explanation of how the tape made it to the jury, Mintz said.

The mistrial highlights questions about the value of prosecuting Clemens to begin with, said Artur Davis, former House member and now a criminal defense lawyer at SNR Denton in Washington.

"This is not the wisest use of public resources," said Davis.

Steven Ross, general counsel to the House from 1983 until 1993, said "major resources were spent getting it to this point" and he doesn't expect the mistrial will change the Justice Department's commitment to prosecution.

"This is a failure not of the strength of the government's case, but of the simple execution in making sure there was editing of electronic evidence," said Ross, who leads the congressional investigations practice at Akin Gump Strauss Hauer & Feld LLP in Washington.

The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).

Monday, July 11, 2011

Prosecutors routinely pursue cases that rely on witnesses with credibility problems similar to those dogging the accuser of former International Monetary Fund chief Dominique Strauss-Kahn because jurors can accept that someone can lie about one thing and tell the truth about another, legal experts say.

Prosecutors have raised questions about the credibility of the maid who has admitted lying to authorities about a range of matters, according to a court filing. The 32-year-old Guinean immigrant maintains she was sexually attacked, her lawyer says. Attorneys for Mr. Strauss-Kahn, who has pleaded not guilty, have said the charges should be dropped. Prosecutors say they haven't decided how to proceed in the case.

The lawyer for the woman—a maid at the Sofitel hotel where she reported the alleged attack—said Sunday the case should go forward, despite acknowledgments by his client that she gave inaccurate statements to gain asylum in the U.S., among other inconsistencies. "The bottom line is this: You don't have to be Mother Teresa to be a victim of a crime," said Kenneth Thompson in an interview.

The main challenge for the prosecutors in this case would be to distinguish between the maid's overall credibility and the veracity of her statements about the incident, experts say. "Credibility issues often exist. That doesn't mean the prosecutor automatically drops the case," said Gerald Shargel, a top criminal defense lawyer in New York. "Weighing the strengths of a case is not singularly focused on credibility problems. The case is like mosaic. You have to look at everything."

Mr. Thompson said the woman conveyed the alleged assault to at least five people immediately after the incident in room 2806, contradicting the account by authorities investigating the case. The woman ran into the hall, he said, and told a supervisor. The supervisor called her manager, who also arrived to listen to the woman's account. The manager then called hotel security officials and two of them interviewed the woman on the hotel's 28th floor. The woman then told her story to a hotel security supervisor, Mr. Thompson said.

"There are people who had no stake in this," he said. "They assessed the situation independent of each other and came to the same conclusion, that she was sexually assaulted."

A spokeswoman for the prosecutors declined to comment on Mr. Thompson's account Sunday.

"The question isn't whether there is political support for a prosecution or whether [the accuser] is sympathetic, the question is whether she is telling the truth and that is up to the prosecutors," said William W. Taylor, who is representing Mr. Strauss-Kahn along with Benjamin Brafman.

A law-enforcement official familiar with the matter said the woman resumed cleaning before telling a supervisor whom she met by chance while getting fresh sheets for Mr. Strauss-Kahn's room.

Prosecutors began worrying about the woman's credibility after Mr. Thompson alerted them to inaccuracies in her asylum application. She had told prosecutors a fake story about being gang-raped and falsely claimed someone else's child as her own to obtain a tax benefit, according to a court filing by prosecutors.

There is physical evidence to support her account of the incident at the Sofitel, prosecutors have said. Compared to most sexual-assault cases, some legal experts say that there is already enough evidence based on what has been disclosed publicly to take the case to trial and let a jury decide whether the sexual contact on May 14 was forced.

Lawyers for Mr. Strauss-Kahn have indicated that any sexual contact didn't involve force.

"We have more here than we have in most sex crimes," said Assistant District Attorney Joan Iluzzi-Orbon, one of the prosecutors in the case, in a recent interview. "The period of time that this happened is completely consistent with what she told us happened."

Some advocates for women and crime victims say prosecutors should pursue the case if there is any reason to believe the maid's story about the incident, pointing out that prosecutors routinely use witnesses with questionable backgrounds.

In mob and insider-trading cases, for example, people who have pleaded guilty to serious felonies or have told lies, have often testified successfully for prosecutors. The 1992 testimony of Sammy Gravano, a one-time mafia underboss, helped convict John Gotti, the head of the Gambino crime family, even though Mr. Gravano wasn't considered entirely trustworthy.

Deborah Denno, a law professor at Fordham University and a criminal-law expert, speaking generally said, "People lie on asylum applications—they sometimes have a lot of pressing financial incentive to do so."

Other legal experts say cases with such credibility issues become problems at trial, especially during cross-examination. Even the asylum application "is an insurmountable hurdle," said criminal defense attorney Mark Geragos, whose clients included Michael Jackson.

Investigators are continuing to dig further into her background and personal relationships, according to people familiar with the situation.

Relations have broken down between prosecutors and Mr. Thompson, the maid's attorney. He has called for Manhattan District Attorney Cyrus Vance Jr. to be replaced with a special prosecutor.

Johnston County district attorney claims best friend had affair with her husband; now DA is talk of the town

Smithfield Johnston County District Attorney Susan Doyle called her staff into a conference room one day last October to tell them about the turmoil in her home: She said she had discovered her best friend was sleeping with her husband.

One longtime staffer gasped and began to weep. And, in a rare show of emotion, so did Doyle.

"She was just hurt," said Kathy Russell, a longtime victim advocate in the DA's office who described the meeting. "I've never seen her that sad. My heart broke for her."

Within days, news of the betrayal spread through the hallways of the Johnston County Courthouse. And, for nine months, it lingered, bringing an awkward tension to a place where everyone knows everyone else's business.

Last month, it went public in the most unlikely way. Doyle sued Christi Stem, her best friend and godmother of her two children, saying Stem had had an affair with Doyle's husband, Michael.

In the lawsuit, she details tawdry texts Stem and Michael Doyle allegedly sent each other, along with the times and places of their secret liaisons.

Since last fall, Stem, a lawyer who handles divorce cases, cowered in the courthouse, careful to check the hallways for Doyle before she walked through, lawyers say. Everyone seemed to tiptoe around the feuding friends.

"I hated it for Christi. I hated it for Susan," said Alan DeLane, a criminal defense lawyer and former prosecutor who worked with Doyle. "It's just not something you expected to hear, not something you wanted to hear."

As part of the suit, Stem, who is also married, will be forced to answer 66 questions about the alleged affair. Doyle seeks damages of more than $10,000 for her pain and humiliation.

The lawsuit startled everyone, including Republicans who helped get her elected.

"I have no idea why she did it," said state Rep. Leo Daughtry of Smithfield, a Republican and longtime booster of Doyle. "If she had asked me, I would have told her not to do it. Ever. I don't know why anyone would want to air their dirty laundry."

Doyle, 42, wouldn't talk about the lawsuit and the details she alleged in it, saying it wouldn't be appropriate to comment on a pending case. She said this about why she filed it:

"As a prosecutor, for years, I've met with victims. Often, they don't want to go forward with their case, don't want to confront their perpetrator. They don't want to go through the pain and difficulty. ... I tell them that it is painful and it is difficult and it is important. I don't know how I can have any credibility if I'm not willing to do the same thing."

Michael Doyle, an executive with Manpower in Raleigh, married Susan Doyle 14 years ago. They are now separated. He couldn't be reached for comment.

She was popular with voters

Doyle had spent much of 2010 on the campaign trail, logging long hours meeting voters at civic group fundraisers and country church homecoming services.

She played well there. Doyle is a career prosecutor who talks tough about drunken driving, the drug addicts who've gotten too many chances and the murderers so vile they deserve to die for their crimes. She won re-election with 66 percent of the vote.

She joined the Johnston County District Attorney's Office as an intern in 1992, then became a full-time prosecutor in 1994. She prosecuted violent crimes much of the time.

Doyle first won the race for district attorney in 2006, beating her fellow assistant district attorney and friend, Dale Stubbs. With the victory, she became the first female district attorney in Johnston County, and the first Republican.

"Susan had an appeal," Daughtry said. "She had a good personality and voters could tell she did her homework."

With blonde hair, blue eyes and a glowing tan, Doyle is attractive. When she walked into meetings with voters, they noticed.

"People would see me and say, 'Well, we sure do have the prettiest DA.' It is a compliment, but it overlooks my intelligence and how hard I work."

Doyle associates sentenced

In Doyle's first year as DA, her closest allies in the courthouse began fraudulently dismissing dozens of DWI cases.

The scandal rocked the Johnston County legal community and Doyle in particular. In 2009, her former prosecutor and friend, Cindy Jaeger, along with Doyle's friends and criminal defense lawyers Lee Hatch and Chad Lee, were sent to prison for obstructing justice. Two other lawyers, Jack McLamb and Vann Sauls, were put on probation.

As each of her former friends walked toward the jail to turn themselves in, Doyle sat in a nearby car with some of her staff, watching and taking photos with their phones.

Doyle explained the unusual action, saying she and her staff had been victimized.

"It had a life-changing effect," Doyle said. "I don't trust like I used to."

Lawyers criticized Doyle

Relations are poor between Doyle and most defense attorneys, people around the courthouse say.

It's partly what drove fellow Republican and lawyer Joy Jones to run against Doyle in the 2010 primary for district attorney. Doyle defeated Jones and also beat former judge George Murphy in the fall.

Lawyers complain that Doyle is hard to reach, rarely shows up in court and offers special treatment to certain defendants and lawyers with connections to the Republican Party. Many point to a deal extended to Paula Harrison, daughter of Wake County Sheriff Donnie Harrison, when she was arrested and charged with trafficking pain pills.

Doyle allowed Harrison to be placed on a probation of sorts and go to rehab. If she complies, the charge will be dismissed. Doyle defends the resolution, as does Harrison's attorney, Daughtry, saying Harrison had a health problem that led to her addiction.

Distrust was so intense between the district attorney's office and defense lawyers that in 2009 Doyle asked for help from Melvin Wright, executive director for the N.C. Supreme Court Chief Justice's Commission on Professionalism. Wright organized and oversaw a training session to try to remind attorneys how to be zealous advocates and kind to each other.

Things remain tense

Hallway banter and courtroom handshakes seem scarce. Instead of a meeting ahead of time to discuss the likely course for a case, prosecutors and defense attorneys are battling about those details in court. And some cases are taking more time than usual.

Late last month, Tom Lock, Johnston County superior court judge and Doyle's former boss, dismissed several meth-related charges against George Adams, saying he'd been denied a speedy trial after more than 400 days in jail and no apparent movement on the case. Doyle said she had expected federal authorities to prosecute.

Doyle chalks up the criticism and strain in the courthouse to her policies. She applied for a grant to prosecute drunken driving charges more aggressively; since then, the conviction rate has soared to more than 85 percent. Previously, about half of DWIs were dismissed.

She also requires more speeders to go to driving school before getting a break on tickets, especially the youngest drivers. She drew a hard line on people who get in trouble with the law repeatedly. Her assistants charge people as habitual felons when they qualify; Doyle must personally make any exceptions.

"I did buck the system," she said.

Lots of talk, even before suit

Even before news of Doyle's family problems shook loose last fall, people gossiped about her personal life.

"The courthouse is an echo chamber. You hear the same thing again and again and it all starts sounding true," said DeLane, the former colleague. "I think people talk in part because of her success. She seems to move from one success to another and that invites curiosity. And speculation."

Doyle said she has done nothing wrong.

"During my 4 1/2 years in office, I've been the victim of unfounded rumors by my political opponents," she said. "I take pride in doing things the right way in my personal and professional life."

Is political future at risk?

People have been talking of late about Doyle's political ambitions - and whether the lawsuit will affect her future.

She said she has been approached about running for attorney general. Doyle said she's happy as district attorney for now.

In the coming year, she will stand on a statewide stage as president of the N.C. Conference of District Attorneys. In that role, which she assumed July 1, Doyle will be a voice for district attorneys across the state, in the legislature and beyond.

Peg Dorer, executive director of the district attorneys' group, was warned of Doyle's lawsuit 15 minutes before it hit the media.

"Well, that's her personal life and her business," Dorer said. "I certainly have concerns about whether she will have the time to devote to the presidency."

Daughtry said the case could haunt Doyle for quite a while.

"Some upheavals last longer than others," he said. "Some have legs. Some don't. I suspect this will be a cloud she will have to deal with for some time."

Sunday, July 10, 2011

he organization that regulates lawyer conduct is making another bid to spell out clearly the obligation of attorneys not to discriminate.

The State Bar of Arizona has asked the Arizona Supreme Court to spell out in its rules that it is professional misconduct for an attorney to "knowingly manifest bias or prejudice" in representing a client based on a host of factors. These range from age, race, gender and religion to socioeconomic status, sexual orientation or gender identity or expression.

That language was crafted by the Bar's Committee on Sexual Orientation and Gender Identity. Attorney Claudia Work said members felt it was important to spell out the obligation in the rules.

But Work said her committee is trying to avoid the pitfalls that befell a similar proposal about the oath lawyers have to take, one that went down in flames amid concerns about the individual rights of lawyers to refuse to represent someone. In fact, she said, it was that failed effort which led to this latest push.

That oath, required of all lawyers, says they "will not permit considerations of gender, race, age, nationality, disability or social standing to influence my duty of care." In 2008, however, the Bar sought to add sexual orientation to that list.

That provokes a firestorm of protest from lawyers who said they could be forced to represent clients whose views they find morally objectionable. There were particular concerns that religious attorneys might be forced to take up the legal cause of gays.

Work said the foes were wrong in their assumption.

"Lawyers aren't buses," she said. "You don't have to take every client that comes along."

Instead, Work said, the idea was to say that once an attorney takes on a client, an attorney cannot torpedo the case based on feelings about that person's views or lifestyle.

"It seems logical," she said. "But it does not appear that a lot of members of the Bar understood that concept."

Putting the prohibition against discrimination against clients directly into the ethical rules governing lawyer conduct, Work said, should spell that out clearly.

She acknowledged that most of the language she wants already exists, not in the rules themselves but in the comments to the rules governing what constitutes attorney misconduct.

These comments essentially are explanations of what the rules mean. And Work said that the comments can be used as a basis to charge an attorney with ethical violations.

But she said that is not enough.

"To a certain extent, some attorneys view the comments to the ethical rules as just suggestions or fine print," Work said. She said including this in the rules themselves would underline that lawyers already have that obligation "and we're not going to make you look for them in the footnotes."

But there is one change that is getting attention.

The comments say lawyers should not discriminate based on someone's "gender identity." The proposal would expand that to say "gender identity or expression."

That raised concerns by the Maricopa County Attorney's Office. Mark Faull, the chief deputy, said he and his boss, Bill Montgomery, are concerned about adding gender expression to what would constitute a basis for a discrimination complaint, saying it create an "amorphous category."

"The Bar does not provide an explanation why this additional language is necessary or desirable," Faull wrote. "The term 'gender expression' is vague and subject to interpretations that might include deviant sexual behavior."

Work said that's not the case. But she said members of her committee felt it was necessary to add that language because it does not fall within other categories, like sexual orientation.

"Think about the little boy on the playground who wants to play football in a pink uniform," she said.

"He's probably heterosexual but he likes some more feminine things," Work continued. " That's 'gender expression,' a boy expressing himself in a non-traditional manner."

Similarly, she said a woman who dresses in what would be considered a "mannish manner," including short hair, a masculine-cut suit, would be someone expressing gender that was different than their physical gender or even sexual orientation.

The proposal is now before the Arizona Supreme Court. The justices have given no indication when they will decide whether to approve the change.

Perhaps just as shocking as the decision to acquit Casey Anthony on murder charges of her 2-year-old daughter Caylee, was the defense team’s conduct after they had seemingly scored a victory.

Casey was found not guilty of first-degree murder, child abuse, and manslaughter, much to the shock of prosecutors and the majority of the public.

Heading off for victory drinks mid-afternoon at a local restaurant across the street from the courthouse, the defense attorneys celebrated unabashedly, popping champagne and dancing, ironically after attorney Jose Baez had just stated there were no winners in the case because Caylee was dead.

Onlookers protested the scene while most of the media criticized the tactless behavior of the lawyers.

Most notably, defense attorney Cheney Mason unashamedly gloated in the win and was even captured giving the middle finger to cameras at the restaurant.

Mason, hoping to justify his actions, later stated that he was giving an obscene gesture to a man who had continually stalked the team for months, according to Technocrati.

The unidentified person was from a radio station and claimed to have yelled at the ladies on the defense with statements like, “Are you on your period?” and “baby killers.” The same man then came to the restaurant and pounded on the glass windows to which Mason “flipped the son of a b**** off.”

“And I’ll do it again!” he exclaimed.

The defense attorney used the First Amendment to justify his behavior, saying it was his right to flip the man off.

Speaking for the entire team, Mason shared as well that they was just celebrating saving Casey Anthony’s life, repeating the earlier statement made by Baez when he told reporters, “The best feeling I have today is when I go home and my daughter asks me, ‘What did you do today?’ I can say ‘I saved a life.’”

Just prior to the scene at the restaurant, the controversial Mason also harshly criticized the media for indulging in “media assassination” following the verdict and reprimanded lawyers who gave their biased opinions on television.

“Well I hope this is a lesson to those of you who have indulged in media assassination for three years, bias, prejudice, incompetent talking heads saying what would be and how be,” he angrily shared.

“I’m disgusted by lawyers who have done this. And my colleagues have condemned this whole process of lawyers getting on cases that they don’t know a damn thing about.”

Adding to their victory, Judge Belvin Perry announced Thursday morning that Casey would be released later July of this year.

Though she was given a 4-year sentence, much of that time had already been served since 2008. After recalculations on the credit earned and gain time based on good behavior, the exact release date is set for July 17th.

And with word that Casey and her defense team have already secured future book deals, there’s no telling how long the defense will continue with the celebrations.

Wednesday, July 6, 2011

NFL Commissioner Roger Goodell and union chief DeMaurice Smith have taken a back seat to lawyers and paperwork for two days.

Attorneys for the NFL and the players' association are sorting out contract language and details that could speed the process in reaching a new labor deal.

"The owners will not open the doors without a signed document in place," a person with knowledge of the talks said on Tuesday. "So this paperwork is important to get done" on Tuesday and today.

The person spoke on condition of anonymity because a judge has directed that details of the court-ordered mediated negotiations not be disclosed.

The 1993 collective bargaining agreement was slowed by the volume of paperwork.

Goodell and were not at Tuesday's meeting at a Manhattan law firm's headquarters.

On Thursday, Goodell and Smith will resume their discussion, with owners and players present.

Those talks could last into the weekend if a new CBA appears imminent, the person with knowledge of the talks said. The sides did not get together on weekends during negotiations over the last month.

Time is gradually becoming a factor in the discussions. Training camps for the Rams and Bears are scheduled to open in less than three weeks, and those teams are scheduled to play in the Hall of Fame game on Aug. 7.

The rest of the training camps would open about a week later, with a full slate of preseason games set for the second weekend in August.

Talks hit a snag last week until U.S Magistrate Judge Arthur Boylan, the court-appointed mediator, stepped in and got both sides "back on track," the person said. After some problems last Thursday in Minneapolis, a two-hour session on Friday was productive.

A group of retired players filed a class-action complaint against the owners and current players in federal court Monday, saying they have been excluded from the mediation sessions taking place in an attempt to end the lockout. A federal court hearing on the retired players' case has been set for Aug. 8 in Minnesota.

The retired players were not originally part of the litigation that began after labor talks broke down on March 11, the players decertified their union and brought an antitrust lawsuit against the league. Hours later, on March 12, the NFL locked out the players.

DeLamielleure said his group should be part of the process, not excluded from it.

"The union is saying, DeMaurice Smith is saying, 'We are one team.' Well, they gave us a seat but no chair," DeLamielleure said. "We really have no say-so.

"Guess what: Those two guys are negotiating, the league and the union, without us again."

Jeff Nixon, another of the plaintiffs, said the retired players are asking both sides to set aside for them an additional 1.5 percent of league revenues - $9.3 billion last year. The NFL and the players had no comment Tuesday on the retirees' complaint.

Across the country, relatively few lawyers use tablet computers extensively to practice law, though they are beginning to take hold. While the devices show a lot of promise, they can't completely replace laptops yet

But two Phoenix personal-injury attorneys are using tablet computers to help solve an age-old complaint attorneys hear from clients: I can never reach my lawyer.

Marc Lamber and James Goodnow have given Apple iPads to 20 of their major clients.

The tablet PCs — which are given back to the law firm when a case is over — are used as so-called "red phones" that allow clients to contact either attorney if they have a question or want more information about their case. The iPads also help the attorneys build high-tech presentations that they use to help settle cases before they end up in court, the lawyers say.

The Phoenix attorneys say that the tablet PC technology has been particularly useful for personal-injury cases. While wealthy corporate clients have BlackBerrys and other technology to keep up with their lawyers and track their legal affairs, working-class personal-injury clients often do not.

"We pride ourselves on being available 24 hours a day, day or night," Lamber said.

Melissa Frankel, 40, of Phoenix was surprised when she got an iPad shortly after she hired Lamber and Goodnow.

"It was nothing that I ever expected," said Frankel, who was injured in a collision last year. She has taken a video of her injuries and she has had Skype video conferences with the lawyers. That means that she makes fewer trips to the lawyers' downtown Phoenix office and she can reach her legal team wherever there is a Wi-Fi connection, without a laptop.

The iPad "is brilliant," Frankel said. "It is the best way, the easiest way to communicate with them."

Tablet PCs

The iPads are an outgrowth of other ways that the duo uses technology to reach clients, such as Google Voice. Lamber and Goodnow, who were already using iPads for legal presentations, began experimenting with iPad and iPod touch devices with some clients last year. Recently, they decided to purchase iPads with their own money for all of their major clients.

Lamber and Goodnow, who work at Fennemore Craig, Arizona's second-largest law firm, say they aren't aware of other attorneys at the firm who have given iPads to clients. Many firm attorneys, however, use iPads for routine computer tasks.

Phoenix-area mediator Scott Skelly says that he has been impressed by the way that Lamber, Goodnow and other lawyers use tablet computers to make presentations. Mediators help both sides of a legal dispute settle a case before it gets to court.

For some cases, attorneys have handed him an iPad that's preloaded with video interviews with experts and witnesses, case documents as well as animation re-enactments of accidents. Instead of using footnotes, the documents also have embedded links that call up the text or case law to which the documents is referring.

When tablet PCs are used expertly, "it's pretty slick and pretty effective," said Skelly, a former Maricopa County (Ariz.) Superior Court judge.

Courtroom trend?

Tablet PCs are popular because they weigh less than a laptop, they make it easy to view documents and videos and they have access to the Internet, said Tom Mighell, a Dallas attorney who wrote a book about using iPads for the American Bar Association.

For a quick court appearance, attorneys can use a tablet PC to look up legal rulings, access case documents, check e-mail and manage their schedule, he said.

But there are drawbacks: Unlike traditional computers, right now it is difficult to create a formatted document, such as a legal brief, that can be submitted to court, on a tablet PC, Mighell said.

There also are some legal concerns, Mighell added. Lawyers who give tablet PCs to clients would have to find ways to make sure that the information on it remains confidential. The lawyers on the opposing side may look for ways to argue in court that they have a right to view some of the information on the device, the expert said.

Goodnow said the issue hadn't come up, but he believed that all of the information exchanged with clients on the iPads is covered by attorney-client privilege.

Joseph Kanefield, president of the State Bar of Arizona, said that he wanted the organization to help lawyers use technology more effectively.

When attorneys go to court, they often feel compelled to bring more information than they need, in case a judge asks a question, Kanefield said.

"You will see lawyers going into court with pull carts and boxes full of binders," the lawyer said. "The future is to have all of that available on a tablet PC."

Tuesday, July 5, 2011

A Minnetonka attorney who represented a man shot to death five weeks ago is now the alleged killer's lawyer, a role that local legal experts say resides in an ethically complicated "gray zone."

The case involves the death of Guled Hashi Mohamed, 26, who was shot in the head May 29 outside a Minneapolis bar. Biyamin Beiti Omar, 28, was indicted for first-degree murder in connection with his death. Authorities say bad blood between the two men triggered the shooting.

Two years ago, attorney Justin Seurer was retained to represent Mohamed against second-degree assault charges for allegedly pointing a gun at three people and threatening to shoot them outside Karma nightclub in downtown Minneapolis. Mohamed pleaded guilty a year later to felony terroristic threats and received three years' probation.

Seurer confirmed last month that he was retained by Omar's family to take on the case but declined to discuss his representation or whether a potential conflict of interest exists. He did not return a telephone message left Friday.

Mohamed's sister, Amina, declined to comment on behalf of the family, citing pending court proceedings. The family's attorney, William Seeley, did not respond to a telephone message.

According to the American Bar Association's Rules of Professional Conduct, a lawyer who once represented a client cannot represent another person in the same or "substantially related matter" that could affect the interests of the former client without getting permission in writing.

Omar apparently was not involved in the bar assault. The assault and the killing aren't related, so there doesn't appear to be a violation, said Martin Cole, director of the state Office of Lawyers Professional Responsibility. But difficulty could arise if Seurer had information about Mohamed. Under the rules, he wouldn't be able to use it to benefit Omar's defense.

"You can be walking a fine line," Cole said. "Can there be issues arising? The answer is yes. But are there? I'm not in a position to say that."

Bound by ethics, constitution

Joseph Daly, a professor at Hamline University School of Law, said that while attorneys are bound by ethics, they're also bound to uphold the U.S. Constitution. The Sixth Amendment requires that people charged with a crime have a right to counsel of their choice. If the only roadblock were the possibility of upsetting Mohamed's family, Daly said, he'd take Omar's case.

"As lawyers, we work constantly in the gray zone, and there's often no clear-cut answer to the dilemmas that are put on our plate," he said. "We have to, in good faith, apply the rules and apply the Constitution and come up with our best judgment."

It's possible that Seurer understands the inner workings of the Somali community, Daly said, and his expertise led him to defend both men. The website for Seurer Law Firm says he is well-versed in multiple aspects of the law, including criminal defense.

Minneapolis criminal defense attorney Peter Wold said that although the cases aren't related, an opportunity exists to learn confidential information from Mohamed's case that could be relevant to Omar's case. However, he said, attorney-client privilege is "sacrosanct."

"That's touchy," Wold said. "I think I can understand why [Mohamed's] family would be upset. The scenario is their son had faith in this lawyer to protect his interests and confidences that he's duty-bound to protect."

Wold said he'd be reluctant to take the case without approval from Mohamed's family. "I would imagine they'd say 'How can you do it?'" he said.

Robert Sicoli, another veteran criminal defense attorney in Minneapolis, said he believes Seurer is acting within the rules by representing Omar. But he called the case "too touchy in my own personal ethics'' and wouldn't take it.

Robert Vischer, a professor and legal ethics expert at the University of St. Thomas Law School, said that although the cases aren't related, Seurer could be in a difficult ethical situation with what he may have learned while representing Mohamed, regardless if he chooses to use it.

"He can't violate the confidences of the first client, but he can't violate his duty of loyalty to the current client," Vischer said. "The duty of loyalty he has is to uncover and pursue every legitimate defense he has."

Omar remains in the Hennepin County Jail in lieu of $2 million bail. His next court appearance is July 15.

Brandon McInerney, who was 14 when he shot King in an Oxnard classroom, faces 1st degree murder and hate-crime charges. The defense will argue for voluntary manslaughter, saying he was young, immature and provoked

When he was just 14, Brandon McInerney walked into an Oxnard classroom, took his seat, pulled a .22-caliber handgun out of his backpack and shot the student sitting in front of him. Then he tossed the weapon to the floor and walked out.

The victim, Lawrence King, was an openly gay student who McInerney reportedly thought had a crush on him.

This week McInerney, looking more like an adult at the age of 17, will be tried in a high-profile murder case that rallied the gay community and triggered calls for greater protections of young homosexuals on school campuses.

Prosecutor Maeve Fox says she will outline a straightforward case in opening arguments set to begin Tuesday in a Chatsworth courtroom. The Oxnard teenager carefully planned and carried out the Feb. 12, 2008, execution of his eighth-grade classmate, she said. He brought a gun to school, positioned himself directly behind King during a morning computer class and fired twice into the back of the 15-year-old's head.

McInerney then dropped the gun and walked out the door in front of two dozen horrified classmates and a teacher, Fox says.

Prosecutors have added a hate-crime allegation, arguing that McInerney's actions were spurred in part by a hatred of gays, in line with his alleged neo-Nazi sympathies. If convicted, he faces 53 years to life.

McInerney is being tried in adult court under the provisions of Proposition 21, which allows prosecutors to bring murder charges against juveniles as young as 14 for certain serious crimes.

McInerney's lawyers, Scott Wippert and Robyn Bramson, say their client doesn't deny the killing. But they argue it was voluntary manslaughter because the adolescent was provoked by King's repeated sexual advances.

Fellow students say the two had clashed for days over King's expressing his attraction to McInerney. King, who was living in a children's shelter because of problems at home, had recently gone to school wearing eye makeup and women's accessories.

McInerney was humiliated by King's advances, his attorneys said. He came from a violent home and decided to end his misery in a way that made sense to him — with a gun. He shot King "in the heat of passion caused by the intense emotional state between these two boys at school," Bramson said last week outside the courthouse, where jury selection was underway.

A voluntary manslaughter conviction would prevent a life sentence, Wippert said, making McInerney eligible for release before he's 40. Even a finding of second-degree murder would virtually assure that he wouldn't be eligible for parole until he was in his 70s, his lawyers said.

The defense will stress McInerney's age at the time of the crime, and may summon a psychologist to talk about the maturity and critical-thinking abilities of a 14-year-old. In essence, they will argue that McInerney didn't have the maturity to deal with King's schoolyard taunts.

"Age will explain his behavior and his response," Wippert said. "How a 14-year-old reacts is different than how an older person would react."

The defense could face a challenge in portraying McInerney as a naive youth. At the time of the shooting, he looked young and sweet-faced. In court recently, the defendant was a tall, lanky young man dressed in crisp Oxford shirts and khaki pants.

Wippert said he's not worried that jurors won't be able to see the confused young boy of three years ago.

"Part of the job of the jury is to understand that this happened when they were in middle school," Wippert said.

Pretrial court proceedings have delayed the case as McInerney changed lawyers and defense attorneys petitioned to remove the Ventura County prosecutors and a judge from the case, claiming they were biased. Those motions were denied.

The defense sought a change of venue and the case was first transferred to Santa Barbara County before settling in the Chatsworth courthouse in Los Angeles County. A defense request to unseal King's juvenile records was denied by a California appeals court.

The killing triggered an emotional outpouring that included candlelight vigils across the country and a day of silence in April organized by the Gay, Lesbian & Straight Education Network, a New York-based group dedicated to preventing harassment of young gays and lesbians on school campuses.

Students at the school, E.O. Green Junior High, organized a peace march attended by hundreds in the days after the shooting. Several states have passed laws specifically outlawing bullying of homosexuals at school, and California strengthened its own anti-bullying laws.

Still, bullying of gays remains a problem. After a spate of suicides by homosexual youths last fall, including that of 13-year-old Seth Walsh of Tehachapi, activists, celebrities and others posted YouTube videos with the It Gets Better Project to inspire hope in struggling youths.

Eliza Byard, the Gay, Lesbian & Straight Education Network's executive director, said progress is being made in communities and schools that proactively address issues of bias. The network will be closely monitoring the McInerney case, she said.

"It's a coda to an unbelievably tragic situation," she said. "This is a case where at least two young lives were destroyed."

Monday, July 4, 2011

legislators with law practices to disclose the names of clients they represent in matters before the state. California and Washington have similar laws.

"You want to know that your legislators are independent, and knowing who their clients are outside of government, and their sources of income outside of government, is part of that story," said Gregory G. Ballard, a lawyer who helped write a report on disclosure requirements for the New York City Bar Association. "The public should be entitled to know those kinds of facts."

Lawyers have fought such requirements, arguing they violate attorney-client privilege. But New York's bill allows legislators to petition a panel if they want to keep a client's name private - for example, to protect a victim of domestic violence.

In Massachusetts, Senator Steven A. Baddour, a Methuen Democrat, has been relatively open about disclosing potential conflicts. Until earlier this year, he was the chair of the Transportation Committee. At the same time, he was doing legal work for construction and paving firms with state highway contracts.

In one of at least six disclosure forms he has filed, he revealed that he helped one of his clients, Methuen Construction Co., get a meeting with the Massachusetts Highway Department. The firm's owner, who is a friend, wanted to get on the department's list of prequalified bidders for construction work, he said.

But Baddour said he did not have a substantive conflict between his law practice and his legislative duties.

"In no case did I represent any of those entities before MassHighway or any state agency," he said. "The representation was not state-related."

Representative Garrett J. Bradley, a Hingham Democrat, similarly disclosed that his law firm was handling workers' asbestos claims at the same time he was considering workers' compensation legislation. His guiding principle, he said: "When you're in doubt, disclose it."

Known violent criminals are being asked to give DNA samples to prove they are not the person who fatally stabbed an 81-year-old woman in her Farmington apartment, according to a Lewiston attorney.

Investigators have identified a DNA sample from the suspected killer; a male who they believe cut his hands during the home invasion on June 21, when Grace Burton was killed, according to Farmington Police Chief Jack Peck.

Police are seeking a match for the suspect's DNA by asking men to voluntarily submit a sample, Peck said.

A criminal defense advocate following the case, however, has questions about how the samples are being collected and, if necessary, how they will be used in court.

More than 70 samples taken so far have eliminated most of the men as suspects, with police still waiting late last week for test results for some of the samples, Peck said.

There has been just one man who refused to give a DNA sample without first consulting with an attorney, and it was still unclear last week if he had submitted a sample, according to Peck and the man's attorney, William B. Cote, the Lewiston attorney.

The man who refused to give a sample is awaiting trial for an assault charge, according to Cote.

Cote refused to name his client because he doesn't match descriptions of the alleged killer, he said.

"I don't think he is a genuine suspect," Cote said, referring to his client.

His client has no cuts on his hands and is much taller than the suspect, who police have said is a slightly built 5-foot, 7-inch male, according to Cote. He would not talk about the advice he gave his client, calling it confidential legal advice.

Investigators told Cote they may have the killer's DNA and they are trying to collect samples from people who have a history of violent behavior, he said.

"They are attempting to exclude as suspects a variety of individuals in the Farmington area who at least have a history of violence," Cote said.

Sarah Churchill, president of the Maine Association of Criminal Defense Lawyers, said she has concerns about whether the men understand the consequences of submitting a DNA sample without first talking to an attorney.

They may be confused by police requests for a sample, most often a swab inside a person's mouth, and feel undue pressure to comply without consulting an attorney, Churchill said.

People unfamiliar with their legal rights and unfamiliar with police tactics may be afraid to deny the requests, because that denial may appear suspicious, she said.

"I do have some concern about what pressure the (suspect) may feel under that circumstance," she said.

Police can ask someone to voluntarily give a DNA sample, but people have the right to deny the request and seek advice from an attorney, Churchill said.

Law enforcement has to get a search warrant from a judge to get a sample when someone denies the request, according to Churchill, who is with the advocacy group for criminal defense issues in Maine.

There may also be a legitimate reason someone's DNA is found at a crime scene, she said. For example, they can be innocent of the crime but linked to the scene by their DNA because they know the person and have spent time at the home, Churchill said.

An attorney can make police aware of the reasons a client's DNA may show up at the scene to avoid unwarranted suspicion, she said.

Whenever DNA evidence is vital to an arrest, defense attorneys have concerns about everything from how the original sample taken from the scene was handled to what people are being asked by police seeking samples, Churchill said.

Contaminated samples, pressure placed on suspects to submit DNA and other issues can result in the evidence being ruled inadmissible by a judge, she said.

Peck said the men are being asked to give a DNA sample based on tips from the public, interviews with investigators and other evidence.

He said investigators tell the men the sample is for the homicide investigation, and that it's being used to exclude them as a suspect.

Some of the men who gave samples approached police and asked to be tested so they can be eliminated as a suspect, he said.

"People have come up to me and said 'Hey Jack, I want to give a (DNA) sample, I want to be excluded,'" Peck said.

Churchill said people should be aware of the conclusions that can be drawn from DNA evidence before they volunteer to give a sample.

She gave one example of when she would advise someone to give a sample before consulting an attorney.

"If the client is adamant that they were never at the scene and don't know the person, they can give a sample," she said.